Yaffa's Kitchen Pty Ltd v Haapakoski
[2019] VSC 295
•9 May 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00513
| YAFFA’S KITCHEN PTY LTD | Plaintiff |
| v | |
| ROBERT HAAPAKOSKI | First Defendant |
| and | |
| JUDITH FRAYNE, JOHN HARRIS and PETER GIBBONS | Second to Fourth Defendants |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 April 2019 |
DATE OF JUDGMENT: | 9 May 2019 |
CASE MAY BE CITED AS: | Yaffa’s Kitchen Pty Ltd v Haapakoski |
MEDIUM NEUTRAL CITATION: | [2019] VSC 295 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of a Medical Panel – Whether Panel denied procedural fairness to employer by reaching conclusions that could not reasonably have been anticipated – Whether Panel’s reasons adequate – No error established – Proceeding dismissed – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 303, 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with Ms F Spencer | Lander & Rogers |
| For the First Defendant | Mr N Horner | Rubicon Compensation Lawyers |
HER HONOUR:
In July 2015, Robert Haapakoski began working for Yaffa’s Kitchen Pty Ltd, a company that produces gluten free and low allergy flour and baking mixtures under the name ‘Well & Good’. Mr Haapakoski worked as a factory hand on the food service production line, filling 15 kg and 25 kg bags of product. In September 2016, he experienced an episode of severe pain in his left shoulder. He continued working for a while, but then stopped work in late October 2016 due to pain in both shoulders.
Mr Haapakoski made a workers compensation claim for injury to both shoulders due to repetitive work, which was accepted. The claims agent for Well & Good arranged for him to be examined by Mr Richard Pease, an orthopaedic surgeon, in November 2016, and by Associate Professor Anthony Buzzard, a general surgeon, in March and June 2017. Both Mr Pease and Associate Professor Buzzard diagnosed bursitis in both shoulders, materially contributed to by his work duties at Well & Good. In June 2017, Associate Professor Buzzard considered that Mr Haapakoski would be able to return to pre-injury duties in two months’ time.
He returned to work on modified duties from January 2017, and by May 2017 was working his pre-injury hours. He continued working modified duties until August 2017. He says he stopped working then because he ‘couldn’t move his arms anymore’ due to pain in both shoulders.
In May 2017, Mr Haapakoski claimed to be suffering from bilateral carpal tunnel syndrome, in addition to his shoulder injuries. This claim was rejected by the claims agent on 5 July 2017. On the same day, the claims agent wrote to Mr Haapakoski advising that he would not be paid weekly payments because he had reduced his hours of work for reasons not related to his shoulder injuries.
Mr Haapakoski disputes both decisions, and referred the dispute for conciliation by the Accident Compensation Conciliation Service (ACCS). On 6 February 2018, the conciliator referred medical questions for the opinion of a Medical Panel, pursuant to s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act).
A Medical Panel, constituted by Dr Judith Frayne, neurologist, Mr John Harris, orthopaedic surgeon, and Associate Professor Peter Gibbons, musculoskeletal physician, examined Mr Haapakoski on 15 May 2018. The Panel found that he did not have carpal tunnel syndrome. It also concluded that the bursitis in his shoulders had resolved, but that he had a current incapacity for work due to post-operative stiffness in his right shoulder.
In this proceeding, Well & Good seeks judicial review of the Panel’s opinion. It contends that the Panel denied it procedural fairness and gave inadequate reasons for its opinion. Well & Good seeks orders quashing the Panel’s entire opinion, and remitting the medical questions for consideration by a differently constituted Medical Panel.
For the reasons that follow, the proceeding must be dismissed.
The Panel’s opinion and reasons
The conciliator referred three questions for the Panel’s opinion. Those questions, and the Panel’s answers to them, were set out in the Panel’s certificate of opinion dated 31 May 2018:
Question 1:What is the nature of Mr Haapakoski’s medical condition (including any sequelae) relevant to the accepted bilateral shoulder injury and claimed bilateral carpal tunnel syndrome?
Answer:The Panel is of the opinion that the worker is currently suffering from residual post-operative stiffness in the right shoulder following removal of plate and screws, which is relevant in part to the claimed right shoulder injury.
The Panel is of the opinion that there is no other current medical condition of either shoulder following resolution of bilateral subacromial bursitis.
The Panel is also of the opinion that the worker is not suffering from bilateral carpal tunnel syndrome.
Question 2:What is the extent to which any medical condition of Mr Haapakoski:
(a)resulted from or was materially contributed to by:
(b)results from or is materially contributed to by:
the accepted bilateral shoulder injury and/or any sequelae?
Answer: In the Panel’s opinion the worker’s current medical condition of residual post-operative stiffness in the right shoulder following removal of plate and screws is materially contributed to by the accepted right shoulder injury.
Question 3:What is the extent to which Mr Haapakoski’s incapacity for work:
(a)resulted from or was materially contributed to by:
(b)results from or is materially contributed to by:
The accepted bilateral shoulder injury and claimed bilateral carpal tunnel syndrome and/or sequelae?
Answer: In the Panel’s opinion, the worker’s incapacity for work resulted from and was materially contributed to by the worker’s accepted bilateral shoulder injury and that the worker’s current incapacity for work is materially contributed to by the worker’s accepted right shoulder injury.
The Panel provided a written statement of reasons for its opinion. At the outset, it noted that it had formed its opinion with regard to the documents and information referred to in Enclosures A and B. Enclosure A listed documents provided by the conciliator with the referral. Enclosure B listed additional documents that had been provided to the Panel by the parties. The Panel’s opinion was also formed with regard to the history provided by Mr Haapakoski and the findings of its examination of him on 15 May 2018.
The Panel set out some background facts that it had gleaned from the referral documentation. It identified the issues in dispute, and set out the reasons for the referral as the agent’s decision to reject Mr Haapakoski’s claim for bilateral carpal tunnel syndrome and its determination that he reduced his hours of work for reasons not related to his claim. It then set out a detailed history taken from Mr Haapakoski that included, significantly, the following:
The worker told the Panel that he injured his right upper arm whilst in Cambodia in December 2014 suffering a fractured humerus which required open reduction and internal fixation with plate and screws. He said that following this surgery [he] had no ongoing problems with his right upper arm or shoulder. He said he had not suffered any prior injury to either wrist or his left shoulder.
Later in its reasons the Panel noted its observations on physical examination, which included ‘a slightly reddened upper arm consistent with the worker’s history of fracture, open reduction and internal fixation and more recent removal of plate and screws through the same surgical scar’. The Panel described Mr Haapakoski’s range of motion in both shoulders, and concluded:
The Panel considered that there was some post-operative stiffness (restricted range of motion) of the right shoulder consistent with his recent operative intervention but there was otherwise no objective clinical evidence of any focal pathology in either shoulder.
After recording its findings on examination of Mr Haapakoski’s hands, and its analysis of the various imaging reports, the Panel set out its conclusions in relation to his shoulder injuries:
The Panel noted that liability was accepted for bilateral shoulder injuries sustained over a period of time whilst at work with the Panel noting imaging evidence of bilateral subacromial bursitis in scans obtained following the accepted injury date. The Panel considered in detail the worker’s pre-injury duties requiring use of both shoulders and arms to repetitively lift and manoeuvre 15 and 25 kg bags of product and manual handling of approximately 400 full bags of product per day consistent with the development of subacromial bursitis and impingement symptoms.
The Panel based upon its own examination of the worker was unable to identify any objective clinical evidence of ongoing subacromial bursitis or impingement and no evidence of any capsular restriction or any rotator cuff or acromioclavicular joint dysfunction and considered that the worker’s bilateral subacromial bursitis has resolved over time and he no longer suffers from this condition.
The Panel noted however that the worker recently underwent operative intervention for removal of plate and screws from his right upper arm and the Panel concluded that he is currently suffering from residual post-operative stiffness in the right shoulder following removal of plate and screws.
Although the cause for insertion of the plate and screws was unrelated to a work injury, the Panel considers the surgery for removal of the plate and screws is properly considered as appropriate treatment to treat his symptoms for the accepted work related right shoulder injury.
The Panel therefore concluded that the worker’s current medical condition of residual post-operative stiffness in the right shoulder following removal of plate and screws is materially contributed to by the accepted right shoulder injury.
…
The Panel considered the bilateral subacromial bursitis condition did cause an incapacity for the worker’s pre-injury duties and the current post-operative condition of the worker’s right shoulder would currently prevent a return to work requiring repetitive heavy lifting and the worker currently has an incapacity for his pre-injury duties due to his continuing right shoulder post-operative stiffness.
The Panel therefore concluded that the worker’s incapacity for work (Pre-injury duties) resulted from and was materially contributed to by the accepted bilateral shoulder injury and that the worker’s current incapacity for work is materially contributed to by the worker’s accepted right shoulder injury.
The Panel also gave reasons for its conclusion that Mr Haapakoski did not have bilateral carpal tunnel syndrome. There was no complaint about that aspect of the Panel’s opinion.
Procedural fairness
The first ground of review advanced by Well & Good was a contention that the Panel denied it procedural fairness. The unfairness was said to be a failure to give a fair opportunity to address the Panel in connection with its conclusions that:
(a) the nature of Mr Haapakoski’s medical condition relevant to the accepted bilateral shoulder injury was ‘residual post-operative stiffness in the right shoulder following removal of plate and screws’; and
(b) that condition was materially contributed to by the accepted right shoulder injury because the February or March 2018 surgery for removal of the plate and screws was appropriate treatment for the accepted right shoulder injury.
These conclusions were said to have been unexpected – conclusions that could not reasonably have been anticipated by Well & Good. It said that it did not know that Mr Haapakoski had undergone surgery to have the plate and screws removed, and that the Panel’s opinion that this was appropriate treatment for the bursitis in his right shoulder came ‘out of the blue’.
Medical Panels and procedural fairness
The function of a Medical Panel under the WIRC Act is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by, among others, ACCS.[1] Part 6, Div 3 of the WIRC Act governs how a Medical Panel must give its opinion on a medical question.[2]
[1]WIRC Act, s 302(1).
[2]WIRC Act, s 302(2).
Section 303 of the WIRC Act provides:
Procedures and powers
(1) A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2) The Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
…
It is not controversial that the opinion of a Medical Panel determines the legal rights and interests of both the worker and the employer who are parties to a dispute under the WIRC Act.[3] For that reason, a Medical Panel must afford procedural fairness to both the worker and the employer in forming its opinion. An opinion formed in a procedurally unfair manner involves jurisdictional error, and may be quashed by an order in the nature of certiorari.[4]
[3]WIRC Act, s 313(4). Senior counsel for Well & Good submitted that a Medical Panel also owes obligations of procedural fairness to the Victorian WorkCover Authority, in addition to its obligations to the employer. This submission was not developed and, as the Authority is not a party to this proceeding, it is not necessary to consider it further.
[4]Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248 (Barrett Burston), [31]–[37].
Yaffa’s Kitchen relied on the following passage in Barrett Burston Malting Co Pty Ltd v Kotzman:[5]
A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be ‘heard’ (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.
This is the departure from procedural fairness that was said to have occurred in this case – the complaint was that the Panel relied on its own expertise to form an opinion that could not have been anticipated by the parties.
[5][2013] VSC 248, [34]. See also Vegco Pty Ltd v Gibbons [2008] VSC 363, [23].
In order to be procedurally fair, a panel may have to fragment its consideration of a question in order to hear from the parties on, for example, an entirely new diagnosis made by the panel.[6] However, a Medical Panel is an expert tribunal and is entitled to rely upon its expertise in forming an opinion. As Ashley JA observed in North v Homolka:[7]
It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material.
[6]Examples of cases in which this should have occurred are Calleja v Franet Pty Ltd [1999] VSC 202 and Barrett Burston.
[7][2014] VSC 478, [104].
Put more colloquially, the question for me is whether the two conclusions that the Panel formed in reliance on its own expertise came ‘out of the blue’.[8]
[8]Barrett Burston, [48]; H&G MacDonald Carriers Pty Ltd v Carson [2014] VSC 586, [20].
Was the Panel unfair to Well & Good?
The fact that Mr Haapakoski had undergone surgery following a motorcycle accident in Cambodia was first raised by Well & Good on its injury claim report, in response to the initial claim for compensation. Mr Pease then took the following history when he examined Mr Haapakoski in November 2016:
He suffered injuries to his right upper arm when he was knocked off a motorbike in Cambodia at Christmas time 2014. He had surgery in Cambodia, “a titanium plate was put in my arm”.
Associate Professor Buzzard also noted, in his first report, the presence of a titanium plate in Mr Haapakoski’s right upper arm, associated with a previous fracture.
Both independent medical examiners diagnosed Mr Haapakoski with bursitis in both shoulders that was materially contributed to by his employment at Well & Good. Neither identified the pre-employment injury and the presence of the plate in his right upper arm as relevant to his work-related injury.
Well & Good appears to have felt that the significance of the motorcycle accident in Cambodia had been overlooked in handling Mr Haapakoski’s claim. On 25 January 2018, its Administration and Finance Manager, Moran Barak-Menachem, wrote to the conciliator at ACCS as follows:
Firstly I’d like to thank you for your time over the phone on Tuesday the 23/1/2018. Before speaking with you I wasn’t sure of how to approach writing a letter as I felt our insurer, Xchanging had not handled this matter in an appropriate fashion. I felt that they had let us down as a company and did not hear what we were saying to them in regards to Roberts Claim.
There is some information that we feel is important for the Medical review panel to consider. Many Years ago Robert was overseas and had a motorbike accident and had to have plates put into his shoulders.
I have attached with this letter Roberts latest Certificate of capacity …
Robert called in after he sent the certificate through and he spoke to Mark Tunchon who is our Technical Director. Mark had asked Robert how he was doing and why he was being referred to another doctor, Robert explained that he was referred as his doctor felt that the metal plates in his shoulder were causing the problems for him and that one of them needed to be removed Mark said to him “is this from your bike accident” and Robert replied yes.
Throughout this whole process we questioned Xchanging in regards to the plates in Roberts’s shoulders and tried talking to his doctor as we felt that he was not being treated accordingly and we never got the assistance that we requested.
We think it’s important the medical review panel take that pre-existing injury into consideration as we question whether the plates in shoulder may have an effect on the bursitis. …
We look forward to some progress in addressing Robert’s health issues, and mutual resolution. …
This letter was included in the material provided to the Panel with the referral from the conciliator. There was discussion before me as to the reason why this letter was sent by the employer. Whatever the intent behind the letter, it is clear from its contents that Well & Good:
(a) believed that Mr Haapakoski had plates in both shoulders due to his motorcycle accident;[9]
[9]This belief was not entirely accurate. All of the other evidence before the Panel was to the effect that Mr Haapakoski had one plate in his right upper arm, not plates in both shoulders.
(b) considered that there might be some connection between the plates and his bursitis;
(c) had been told by Mr Haapakoski that his doctor felt that the plates were causing his shoulder problems and that one of them needed to be removed; and
(d) asked the Panel to consider the pre-existing injury, in particular whether the plates might be having an effect on the bursitis.
The information that Well & Good had from Mr Haapakoski about his doctor’s advice was reflected in reports from his treating orthopaedic surgeon, Mr Trung Nguyen. Mr Nguyen first saw Mr Haapakoski in late October 2017, and at that time was not certain of his shoulder diagnosis. On 10 November 2017, Mr Nguyen wrote to Mr Haapakoski’s general practitioner:
I reviewed Robert again today. The steroid injection that he had into the right subacromial space 2 weeks ago has not done anything to his right shoulder symptoms. Therefore I think his bilateral shoulder/arm symptoms are not actually from the shoulders. His left sided symptoms are probably coming from his neck. His right shoulder symptoms could possibly be irritation from the old prominent fixation plate.
Therefore after discussion with the patient today, I will place his name on the Monash Health waiting list to have the plate and screws removed from the right humerus.
Mr Nguyen wrote a more detailed report to Mr Haapakoski’s solicitors on 5 February 2018, in which he raised the possibility that Mr Haapakoski’s right shoulder symptoms were caused by irritation from the fixation plate from his previous fracture in 2014. In light of that possibility:
After discussion with Mr Robert Haapakoski, his name was placed on the Monash Health waiting list to have the metal plate removed from his right humerus to see whether that would improve his shoulder and arm symptoms.
In answer to the solicitors’ specific questions, Mr Nguyen said that:
(a) he could not establish a clear diagnosis regarding the bilateral shoulder and arm symptoms;
(b) the bilateral shoulder and arm symptoms had not stabilised; and
(c) as mentioned, the patient’s name was placed on the Monash Health waiting list to have the metal plate removed from his right humerus.
Mr Nguyen’s report of 5 February 2018 was emailed to the Panel, the conciliator and Well & Good’s claims agent on 9 March 2018. His uncertainty about the diagnosis and the foreshadowed surgery to remove the plate did not prompt the claims agent to arrange for a further examination of Mr Haapakoski.
On 14 May 2018, the day before the Panel saw Mr Haapakoski, Well & Good’s claims agent sent a submission for the Panel’s consideration. The submission focussed on the claimed bilateral carpal tunnel syndrome. It said nothing about a possible connection between the plate in his right upper arm and his ongoing shoulder pain. Nor did it query whether the accepted bilateral shoulder injuries were work-related, in light of Mr Nguyen’s most recent opinion.
The medical questions that were referred to the Panel were referred on the basis that Well & Good had accepted liability for the bursitis in both Mr Haapakoski’s shoulders. The Panel was also asked, specifically, about any sequelae of that medical condition and his claimed bilateral carpal tunnel syndrome.
In these circumstances, I am unable to accept that the Panel’s impugned conclusions came ‘out of the blue’ and could not have been reasonably anticipated by Well & Good. To the contrary, the Panel did what it was asked to do in the letter from Well & Good – it considered the possibility that the continuing pain in Mr Haapakoski’s right shoulder might have something to do with the plate in his right upper arm. It did so against the background that Well & Good had accepted liability for the bilateral shoulder injuries, based on the opinions of two surgeons, and was not resiling from that position. It was not beyond contemplation that the Panel would accept that removing the plate was appropriate treatment for his ongoing shoulder pain.
Further, Well & Good was on notice that Mr Haapakoski was to have surgery to remove the plate, having been told that directly by Mr Haapakoski, and also by Mr Nguyen in his November 2017 and February 2018 reports. It was to be expected that, having been placed on a waiting list by his surgeon, Mr Haapakoski would have the surgery some months later.
It may be the case that Well & Good’s claims agent did not grasp the significance of the plate in Mr Haapakoski’s right upper arm, or the advice of his surgeon that it should be removed to see whether that would improve his symptoms. However, Well & Good itself was aware that these matters were significant, and asked the Panel to consider them. It cannot now complain that the Panel did exactly that. Well & Good had the opportunity, between the referral in February 2018 and the examination in May 2018, to make further submissions about what contribution the plate was making to Mr Haapakoski’s shoulder symptoms and the foreshadowed surgery. It seems, from the written submissions made on 14 May 2018, that its claims agent missed that opportunity.
The procedural fairness ground of review is not made out.
Adequacy of reasons
Well & Good also contended that the Panel gave inadequate reasons for its conclusion that the surgery to remove the plate was appropriate treatment for the accepted right shoulder injury.
A Medical Panel is required, by s 313(2) of the WIRC Act, to provide a written statement of reasons for its opinion. The Panel’s reasons must explain its actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law.[10] A statement of reasons is not adequate if there is a ‘real doubt’ whether the Panel correctly performed its statutory functions.[11]
[10]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [55] (Wingfoot).
[11]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47].
A Panel’s reasons may be able to be understood combining what is expressly stated with necessary inferences from what is stated. However, ambiguity in a Panel’s reasons may render those reasons inadequate, where its conclusions are open to more than one interpretation.[12] A reviewing court must not speculate about a Panel’s path of reasoning in order to fill the gaps,[13] and should avoid drawing inferences that lack a ‘proper evidential foundation disclosed in the reasons’.[14] At the same time, the court should not subject the Panel’s reasons to ‘over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’.[15] A balance must be struck between requiring too much, or too little, of Medical Panels.[16]
[12]Pearce v Lloyd [2016] VSC 806, [62].
[13]Denham v Consolidated Herd Improvement Services Co-op Ltd [2014] VSC 520, [37].
[14]Tan v Kotzman [2016] VSC 482, [22].
[15]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[16]Kipniak Pty Ltd v Rann [2017] VSC 651, [97].
Well & Good submitted that the Panel’s conclusion that the surgery was appropriate treatment was preceded by the following findings:
(a) the accepted right shoulder injury was the development of subacromial bursitis and impingement symptoms;
(b) at the time of its examination it was unable to identify any objective clinical evidence of ongoing subacromial bursitis or impingement and no evidence of any capsular restriction or any rotator cuff or acromioclavicular joint dysfunction, and it considered that the worker’s bilateral subacromial bursitis had resolved over time and that the worker no longer suffered from that condition; and
(c) the worker had recently undergone operative intervention to remove the plate and screws from his right upper arm and was suffering from residual post-operative stiffness in the right shoulder following removal of the plate and screws.
These findings were said by Well & Good to raise more questions than they answered, including when the accepted shoulder injuries had resolved and, given that they had resolved, on what basis the Panel found that the surgery was appropriate treatment for ongoing symptoms of the injuries. Well & Good submitted that the Panel’s reasons did not answer these questions, and did not explain how it had reached the critical conclusion that the surgery was appropriate treatment for the accepted right shoulder injury.
I cannot agree with this submission. Reading the reasons as a whole and in context, and without searching for error, it is reasonably clear that the Panel considered that the surgery was appropriate treatment for symptoms that persisted at the relevant time, but had subsequently resolved. That is the inference that arises, as a matter of logic, from the Panel’s earlier findings and the history of ongoing pain recorded in its reasons. It is consistent with the opinion of Mr Nguyen, and his recommendation that the plate be removed to see if that would improve Mr Haapakoski’s right shoulder symptoms. I add that, on a fair reading of its reasons, the Panel did not find that the surgery was appropriate treatment for symptoms that had already resolved.
In my view, the Panel’s reasons were adequate.
Disposition
As neither ground of review was made out, the proceeding will be dismissed. I will hear the parties on the question of costs.
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